United States v. Vineyard

• Decision Date: 12 June 1934
• Docket Number: No. 7219.,7219.
• Citation: 71 F.2d 624
• Parties: UNITED STATES v. VINEYARD.
• Court: U.S. Court of Appeals — Fifth Circuit

71 F.2d 624 (1934)

UNITED STATES v. VINEYARD.

No. 7219.

Circuit Court of Appeals, Fifth Circuit.

June 12, 1934.

Randolph C. Shaw, Sp. Asst. to Atty. Gen., and Lawton H. Ware, of Atlanta, Ga., Veterans' Administration, for United States.

Thomas M. Stubbs, of Atlanta, Ga., and A. Sidney Camp, of Newnan, Ga., for appellee.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit, filed in August, 1931, is on a war risk insurance policy; the claim is that plaintiff became totally and permanently disabled on October 8, 1918. It is admitted that on that date he received a gunshot wound in the lower left leg, and that a serious and disabling injury then resulted. The controversy is over its totality and permanence. The District Judge thought the evidence made an issue for the jury as to these, and over defendant's insistence that it should have an instructed verdict he sent the case to them. A verdict for plaintiff resulted. Defendant is here insisting that, taking the evidence most strongly for plaintiff, it proved no more than that he received a bad and partially disabling leg wound which, though it has since pained and inconvenienced him, cannot be said to have been totally and permanently disabling within the meaning of the policy. Denying its permanence as well as its totality, it argues that on the face of it, if the permanence of the injury be conceded, the case fails for want of totality. Pointing out that the entire loss of a leg below the knee does not of itself constitute total disability, it argues quite convincingly that there is nothing in the evidence to indicate that plaintiff suffered even as great a disability as that would be.

We think defendant is right. There is a great variety of medical opinion as opinion. When it comes to facts as facts, all of the proof is one way as to the only partially disabling character of the injury, and that it has not in fact prevented plaintiff from obtaining his livelihood by work. There is difference of opinion among the physicians as to whether the wound may be or might have been healed, if proper and adequate measures are or had been taken. As to whether, in short, the wound was in its nature when received a permanent injury. Some are of the opinion that a "slip-sliding" operation would greatly relieve, if it would not altogether cure, the disablement. Others do not think so. Some favor amputation just above the wound, and the use of an artificial leg, as being the thing for plaintiff to do. Others think plaintiff is better off with his own leg, affected as it is, than he would be with an artificial one. Some express the opinion, notwithstanding the fact of his having actually worked with reasonable continuity since his discharge from the army, that he is and has been totally and permanently disabled from working; others conclude that the disability is only partial.

All this, however, is mere opinion. When we turn from opinions to facts, we find them all one way, clear and without dispute, entirely free from uncertainty, confusion, or contradiction. They are: That with reasonable continuity he has, since his discharge from the army, been engaged in substantially gainful occupations; that during all of the thirteen years before this suit was filed he has made his living by working. During a good part of this time he has earned on an average of $10 to $15 per week. During the greater part of it he has received compensation from the government on the basis of partial disability. There is no record that he ever, except in connection with this suit, claimed during that whole period that he was totally and permanently disabled, while every statement that he made, and every action that he took, is inconsistent with that claim. It is true, in offset to these facts, plaintiff did prove that the work he has done has been attended with inconvenience and pain, and that friendship and consideration for him as a disabled veteran were large factors in enabling him to get work and keep it. The proof shows too, that the kind of work he has chosen to do, as a shoe salesman for a long while, and latterly as a barber, has been hard on his wound and the cause of much of the pain and discomfort he has suffered from it. There is no proof that he has undertaken to get any work less taxing, and therefore none as to what effect that kind of work would have on him. We may assume, however, that the work he chose to do was the only kind of work available, and still the disability he makes out would in law be no more than partial.

It must be admitted that because of the necessary vagueness of outline of the touchstone, the existence of total and permanent disability, by which these cases must be tested, they are essentially fact cases. U. S. v. Martin (C. C. A.) 54 F.(2d) 554, 555; U. S. v. Crume (C. C. A.) 54 F.(2d) 556, 557. It is because of this vagueness of outline that the courts have properly refrained from formulating definite patterns or standards to which verdicts must conform. Because of it, they have avoided that "delusive exactness" which is "a source of fallacy throughout the law"¹ not only when it unduly limits the fact-finding range of a judge, but when it unduly limits that of a jury as well. Quanah, Acme & Pac. R. R. v. Gray (C. C. A.) 63 F.(2d) 410; Pokora v. Wabash Ry., 54 S. Ct. 580, 78 L. Ed. 1149. Because of this vagueness of outline, this absence of fact patterns, it has come about that in these war risk cases decisions are cited from different circuits, and sometimes from the same circuit, which appear to be inconsistent in result. Because of it, it is pressed upon us here with confidence that some of our decisions require that the verdict be not disturbed. Earlier cases relied on are U. S. v. Cox (C. C. A.) 24 F.(2d) 944 and U. S. v. Acker (C. C. A.) 35 F.(2d) 646. Later ones, Wise v. U. S. (C. C. A.) 63 F.(2d) 307; U. S. v. Sorrow (C. C. A.) 67 F.(2d) 372; while many cases are cited from other circuits as supporting the same view. The government, with equal confidence, marshals as opposed the Martin, Crume and Wise Cases, supra, Walters v. U. S., 63 F.(2d) 299; U. S. v. Howard, 64 F.(2d) 533, and O'Quinn v. U. S., 70 F.(2d) 599, from our circuit, numbers of cases from other circuits, and, in addition, Lumbra v. U. S., 290 U. S. 551, 54 S. Ct. 272, 78 L. Ed. 492. This wealth of citation discloses, we think, inconsistencies more apparent than real. Inconsistencies which, when they appear at all, are not in the statement, but in the application of the controlling principle. Inconsistencies which in the writer's opinion but illustrate the undeniable fact that the decision in very close cases, of whether a jury issue is made out, is often an intuitive one; that there are other processes of concluding less easily statable, but sometimes more penetrating, than those of a downright and avowed formal logic, Love v. N. Y. Life Ins. Co. (C. C. A.) 64 F.(2d) 829, Sibley, J., dissenting; Arnall Mills v. Smallwood (C. C. A.) 68 F.(2d) 57, Hutcheson, J., dissenting; and that "in the end whether a verdict should be instructed is one for the exercise of...